Judge Blocks Part of Patriot Act

[Blackadar]

Good to know that someone is still looking after the Constitution!

Judge blocks part of Patriot Act
Secret searches unconstitutional, he rules
Wednesday, September 29, 2004 Posted: 9:37 PM EDT (0137 GMT)


NEW YORK (AP) -- Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism.

The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers.

"Today's ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer.

U.S. District Judge Victor Marrero struck down a provision of the Patriot Act that authorizes the FBI to force Internet service providers and phone companies to turn over certain customer records. The companies are then barred from ever disclosing the search took place.

In his ruling, the judge called national security of "paramount value" and said the government "must be empowered to respond promptly and effectively" to threats. But he called personal security equal in importance and "especially prized in our system of justice."

Marrero said his ruling blocks the government from issuing the requests or from enforcing the non-disclosure provision "in this or any other case." But the ruling will not immediately take effect to allow for an appeal.

Megan L. Gaffney, a spokeswoman for the federal prosecutor's office in Manhattan, said the government was reviewing the decision and had no immediate comment.

The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches, and violates the First Amendment because its permanent ban on disclosure is a prior restraint on speech.

He noted that the Supreme Court recently said that a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

"Sometimes a right, once extinguished, may be gone for good," Marrero wrote.

Marrero issued his decision in favor of an Internet access firm identified in his 120-page ruling as "John Doe." He had agreed to keep the firm's identity secret to protect the FBI probe that led to the search request.

Jaffer, the ACLU lawyer, said the government had turned over as part of the lawsuit a six-page document showing it had obtained Internet or telephone records dozens and possibly hundreds of times.

The government was authorized to pursue communications records as part of a 1986 law. Its powers were enhanced by legislation passed after the passage of the Patriot Act in 2001.

In a footnote to his ruling, Marrero cited words he had written two years ago in another case to warn that courts must apply "particular vigilance to safeguard against excess committed in the name of expediency."

"The September 11 cases will challenge the judiciary to do September 11 justice, to rise to the moment with wisdom equal to the task, its judgments worthy of the large dimensions that define the best September 11 brought out of the rest of American society."

[Fritz]

Whattaya know, them checks and ballances work sometimes

[Flasch186]

hoorah!!!

[Honolulu_Blue]

Whattaya know, them checks and ballances work sometimes

They certainly do. Though sometimes when they work people like to think of the checks as "activist" judges. To paraphrase the Fresh Prince "Sometimes [people] just don't understand."

[SirFozzie]

Whattaya know, them checks and ballances work sometimes


don't worry.. congress will soon have a bill to block such activist rulings from judges...
:p :rolleyes: :p :rolleyes:

[Radii]

Judge blocks part of Patriot Act
Secret searches unconstitutional, he rules


:):):)

Man that is awesome news. I heard this story on NPR yesterday, I was absolutely thrilled.

[Buccaneer]

You mean a major bi-partisan legislation coming out of Congress was actually ruled, in part, Unconstitutional?? Imagine that.

Now if we can get the "people" to stop clamoring for a National ID card, a passanger database, mandates to the States, and many many other legislation and programs it wants Congress to "solve" - maybe, just maybe we can start to reign in the strong, central power. But that won't happen as long as the "people" are being hypocritical. It doesn't unchecked powers in certain areas but desire unchecked powers in other areas.

[SirFozzie]

THe "people" clamoring for such things are the people providing such solutions. Dozens of congressmen admitted when they were interviewed, that they did not actually READ the Patriot Act in the days after 9/11. It was a knee-jerk (with the emphasis on the word jerk) act that basically used the Constitution for toilet paper.

[Crapshoot]

Aye- the sooner parts of it are taken apart, the better.

[GrantDawg]

They got one right, so far.

[John Galt]

This decision is really not that important. It actually stems from a part of a Reagen era antiterrorism act that was modified by the Patriot Act (but not in a way that made it more unconstitutional). And the overall scheme and design of the Patriot Act is still intact. The media is not really reporting this whole thing right because they are just reprinting the ACLU and government press releases (which don't explain the relative unimportance of the case).

[JonInMiddleGA]

It's a ruling from a Clinton-era judge, so I'm not exactly surprised but this one seems
ripe for appeal.

[Glengoyne]

It's a ruling from a Clinton-era judge, so I'm not exactly surprised but this one seems
ripe for appeal.
I don't know why. It does seem that the specific item ruled on here, could well be used as one of the definitions for "unreasonable search and seizure".

I agree with the general sentiment here that this is a good thing, but don't necessarily go along with the "Patriot Act is evil" theme some of the above posters seem to have adopted.

I'm not sure how to make the law better. It seems that if the government is actually tracking down terrorists, then they should pretty well have close to carte blanche. That said, I'm afraid that law enforcement has overstepped the application of the Patriot Act to make it apply to a broader selection of cases, than "terrorism" alone. I don't think it is a good idea to remove judicial review from the law enforcement equation.

[JonInMiddleGA]

I don't know why. It does seem that the specific item ruled on here, could well be used as one of the definitions for "unreasonable search and seizure".

Unless, of course, you can find a judge/panel that doesn't find anything "unreasonable" about it.

{not ripping you or your comment, just explaining why this seems like an obvious appeal situation to me}

I don't think it is a good idea to remove judicial review from the law enforcement equation.

And at this point, I'm not sure I agree with you (at least not absolutely).

[Radii]

This decision is really not that important. It actually stems from a part of a Reagen era antiterrorism act that was modified by the Patriot Act (but not in a way that made it more unconstitutional). And the overall scheme and design of the Patriot Act is still intact. The media is not really reporting this whole thing right because they are just reprinting the ACLU and government press releases (which don't explain the relative unimportance of the case).

Can you expand on that? I don't really understand why this is something that isn't important. It seems to me that any laws regarding access to information on the internet are still in their infancy and anything making this information more secure or less easy to legally acquire without just cause is a huge precedent.

My understanding from the NPR piece was that the FBI could request any information from any carrier about you, for any/no cause, the carrier(ISP/email provider/Amazon/Ebay/any other purchase records) is required to turn over any records, and is not only not required to tell you they've done it, in fact they are not allowed to tell you they've done so, all of this because of the patriot act provisions.

This seems on the face of it to be a huge 4th amendment issue. My knowledge unfortunately is limited to what i've read and heard from various news sources in the past couple of days though, so if you could elaborate on why this is being presented incorrectly i'd appreciate it.

[QuikSand]

The matter of "national security" (or "homeland security") is troubling for people who really are rooting for the right things here.

On one hand, nobody denies that we ought to make efforts to protect ourselves from threats within and without the country. To the extent this sometimes means that the reasoning behind some actions we take should remain secret to protect the people involved or the effectiveness of ther efforts, then it's hard to argue flatly against such a principle, I think. Perhaps we need reasonable assurances in the process, but in concept most can see the rationale for this sort of thing.

However, once you open the door to all sorts of searches and confiscations based on a simple executive assertion that some matter has crossed into the realm of being "related to homelad security" without any check on the use of that power -- I would hope that most people find that notion at least potentially disturbing. Whether these things apply to illegal immigrants, non-citizen legal immigrants, naturalized citizens, or American-born citizens makes a difference in principle, but there seems to be something pretty substantive below all this.


You don't have to be a guilty party yourself to be deeply concerned about how much authority we collectively give the government to investigate, search, charge, detain, or punish people. Whether the immediate case at hand applies to me personally is relatively immaterial -- this is one of the issues that is pretty high on my personal priority list.

[QuikSand]

This decision is really not that important. It actually stems from a part of a Reagen era antiterrorism act that was modified by the Patriot Act (but not in a way that made it more unconstitutional). And the overall scheme and design of the Patriot Act is still intact. The media is not really reporting this whole thing right because they are just reprinting the ACLU and government press releases (which don't explain the relative unimportance of the case).

I trust you are better informed about this than I am.

I have heard that the specific point in contest was basically a matter of paper-shuffling -- that the "letters" the agents needed were already enough proof, but the USA-P act served to speed up and decentralize the process of developing the letters.

In any event -- if someone is looking at all this stuff and deciding that it goes too far across the Fourth Amendment, I think it's more than small potatoes at stake.

[John Galt]

Can you expand on that? I don't really understand why this is something that isn't important. It seems to me that any laws regarding access to information on the internet are still in their infancy and anything making this information more secure or less easy to legally acquire without just cause is a huge precedent.

My understanding from the NPR piece was that the FBI could request any information from any carrier about you, for any/no cause, the carrier(ISP/email provider/Amazon/Ebay/any other purchase records) is required to turn over any records, and is not only not required to tell you they've done it, in fact they are not allowed to tell you they've done so, all of this because of the patriot act provisions.

This seems on the face of it to be a huge 4th amendment issue. My knowledge unfortunately is limited to what i've read and heard from various news sources in the past couple of days though, so if you could elaborate on why this is being presented incorrectly i'd appreciate it.

Basically (and I haven't read the 100+ page decision), I understand the case to strike down part of the Electronic Communications Privacy Act (as amended by the Patriot Act). The decision affects a very narrow issue about whether the government can force an ISP to disclose the "true" identity of an email user for national security purposes. And the decision is even more narrow than that - it really deals with whether the statute allowed for judicial review of those decisions. The government argued the statute allowed for review (not that review wasn't required), so the dispute was very limited. The end result will probably be the same searches are allowed with judicial review (which is what the government was defending in the case).

Now, I haven't read the opinion myself, but given that very narrow issue and that the decision was only a federal district case, I don't think it is that important in terms of the overall constitutionality of the Patriot Act.

[John Galt]

I trust you are better informed about this than I am.

I have heard that the specific point in contest was basically a matter of paper-shuffling -- that the "letters" the agents needed were already enough proof, but the USA-P act served to speed up and decentralize the process of developing the letters.

In any event -- if someone is looking at all this stuff and deciding that it goes too far across the Fourth Amendment, I think it's more than small potatoes at stake.

Any federal search case will necessarily have a Fourth Amendment component. Because the case was really about whether the statute required judicial review (and the government felt it did) as required by the Fourth Amendment, the issue wasn't so much about the substantive issues of the search. Rather, the decision was about the procedures necessary to review the search.

I'm not denying that the issue is important, but this was not a case where the government was arguing they could do what they want without review. If that were the case, I think this would be a bigger defeat. Since it was really just a statutory interpretation question, I don't see it as big of a deal (since a new form of the statute can be implemented with a clear allowance for judicial review).

Of course, all of this relies on my understanding of a decision I haven't yet read.

[Buddy Grant]

My take on this is that the ruling will be dismissed shortly by another higher court ruling basically saying the exact opposite. I have no facts to back up that hunch, but to me is it seems like an issue of common sense. Who better than secretive government institutions to look into your online purchasing habits, internet chat tendencies, bank account withdrawals, phone conversations, and questionable attitudes displayed in your personal mail correspondence. After all, if you haven't done anything wrong, you probably would have nothing to fear anyway, and these days what with and all you just can't be too careful. It reminds me of a trip I took to a meat processing plant as a young boy - sometimes it's better to just not think about how that open faced luncheon meat sandwich (with the pimento eyes and green pepper mouth) came to be. Maybe the school cook didn't wash her hands before constructing it, but all the same that's a mighty tasty meal.

I guess it all boils down to this - some people value personal freedom far too much, and these people would knowingly allow our society to devolve into a totalitarian state where personal freedoms were a thing of the past. The day you allow terrorists to purchase smart bombs via Amazon is the day you can finally say that the terrorists have won, and maybe I'm alone here, but I for one hope the terrorists never even get that chance. Sometimes I wonder who's side all these Clinton era judges are really on - maybe these judges themselves should be secretly checked out (spending habits, dating frequency, etc.). Just my $0.02.

[Crapshoot]

BG is a wonderful satirist or an idiotic troll- Im not quite sure yet.

[Wolfpack]

The things I've read seem to indicate JG is right, that this is not something (in spite of media indications otherwise) that is a "crushing blow" to the Patriot Act and those that support it, but mostly a language-and-interpretation thing about one very specific action the government can or cannot take. Basically, this case does not affect the substantive body of the Patriot Act in any way, just what it did to amend an electronic surveillence law passed back in the 80s.

[Sharpieman]

I guess it all boils down to this - some people value personal freedom far too much.
LOLOLOLOLOLOLOLOLOLOLOLOL. Thats classic.

[Radii]

I guess it all boils down to this - some people value personal freedom far too much

That, and the following statement, at least, the coherant parts(...smart bombs on amazon, what the fuck are you talking about man...) is simply the most amazing thing I've ever read.

The "if you aren't doing anything wrong you shouldn't mind" argument I think is extrodinarily, fudamentally flawed, but at least I've heard it before... this is the first time I've ever been accused for valuing my freedom too much.

[RendeR]

...I guess it all boils down to this - some people value personal freedom far too much, and these people would knowingly allow our society to devolve into a totalitarian state where personal freedoms were a thing of the past....



please correct me if I'm wrong, but this statement is complete shyte. How are the people who value their freedom the most, going to create a totalitarian government?

The people trying to create the totalitarian government (AKA the republicans and the christian right) don't think personal freedoms ARE all that important. They have grand causes and higher meaning to live for, you don't need freedom for that.

Those of us who oppose bulldozing wide ranging legislation like this through the system and into law are the ones you suggest "value personal freedom too much" We're trying to STOP the totalitarians from taking over.

so please...can you clarify your comments?

[JonInMiddleGA]

... is simply the most amazing thing I've ever read.

Umm ... check posts like this one
http://dynamic2.gamespy.com/~fof/forums/showpost.php?p=561638&postcount=110

And then check this link
http://dictionary.reference.com/search?q=parody

[sterlingice]

So, uh, guys, want to get started on outlawing "sneak and peek" warrants next?

SI